COST OF CARE
The case of Sowden v Lodge [2003] EWHC 588, a decision of Mr Justice
Andrew Smith on the 25th May 2003, will doubtless be used by defendants
to try to persuade claimants' solicitors to abandon their claims for the full
cost of care at home. Stated simply, the issues were whether
1 the claimant would live in her own accommodation, or residential accommodation
shared with other disabled people, provided by the local authority, and
2 if the former, whether the local authority would pay.
As the claimant lost the first point, it may appear that this case is indeed
a shift in legal policy, in favour of reducing care claims. However, I believe
that this is not the correct interpretation of the decision, and the purpose
of this article is to warn claimants' practitioners not to be browbeaten by
this decision.
The well-known cases of Firth, Bell and Ryan were considered,
and approved by the judge. Another case cited to the judge was Cunningham
v Harrison, a 1973 decision of Lord Denning, in which he said (he was generally
rather against these big claims): "There should be moderation in all things, even
in a claim for personal injuries. Let him have all such reasonable expenses as
are appropriate to a normal person so placed, but let them not be increased by
his exceptional personality."
At the time of the trial, the claimant had been living at her present residential
home for about five years. It comprised three bungalows, each with six residents.
She had had no contact with her father for many years, and had not seen her mother
or sisters for about three years. Various complaints were made on behalf of the
claimant about the quality of the care at the home, but they were rejected. The
evidence about the claimant's own wishes for her accommodation seems to have been
unsatisfactory.
The judge specifically assumed that the local authority would fulfil its duty
under the National Assistance Act 1948, and would provide accommodation appropriate
to the claimant's needs; he did not speculate about possible changes in the statutory
regime. One argument put in favour of a private arrangement of accommodation was
that, because the purpose of damages is to return a claimant to his or her pre-accident
position, this must mean that she could live independently in her own home, and
that such an arrangement would have benefits for the claimant. Various arguments
were put forward in relation to the benefits which would arise if private accommodation
were chosen, such as choice of carers, higher standard of care, control over the
routine, continuity of care, and the ability to resist institutionalisation. The
judge considered all these points to be potentially relevant, but decided on
the evidence that the claimant was not able to play any real part in selecting
carers, and that the quality of local authority care would not necessarily be
lower than privately arranged care, even though the latter would be more intensive.
On the other hand, he (rightly in my opinion) considered the importance of social
isolation, which is always a material consideration in deciding on a plan for
life.
The overriding feature of the case, it seems to me, was that the claimant had
been living in a residential arrangement for 10 years, and had not been discontent.
The judge concluded that it was in the interest of the claimant to have a residential
arrangement.
It is sometimes said by insurers to be significant that the claimant has recovered
only 50% under a liability trial or settlement (as had happened in this case).
This was argued here, on the basis that therefore the claimant would not be able
to afford private accommodation for the rest of her life, and that there would
thus be a disruptive change at some time in the future. The judge did not need
to make a specific finding on this submission, because he had already decided
that local authority care was appropriate, but he did say that this would only
have been a "marginal" consideration.
Another argument put forward was that, if private accommodation was in the claimant's
interest, the local authority would be under a duty to provide her with her own
accommodation, and the assessment of damages should be made on the basis that
they would do so. This is based on section 21 of the National Assistance Act 1948.
Had the judge decided that private accommodation was appropriate, he would not
have upheld this argument by the defendant.
This case emphasises the very real need for careful consideration, during the
preparation of the claim, of the claimant's plan for life. As I repeat in my recent
book (Brain and Spine Injuries - the Fight for Justice), it is essential to discover
what the claimant and his or her family really want. It is not universal to prefer
private accommodation following a catastrophic injury, for different reasons,
one being the inability of the family to cope with ongoing care, and another being
the social isolation which can arise (although this should be reduced or eliminated
by good case management and care regimes). If one does not pay sufficient attention
to this vital part of the claim, then the evidence will be insufficient, as it
obviously was in Miss Sowden's case. As always, evidence is essential, both factual
and expert. Once specialist lawyers have discovered what the claimant really wants,
it is almost always possible to find the evidence in support.
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